March 1, 2006

The state Assembly voted 62-31 Tuesday to let voters decide whether to write a ban on same-sex marriages and civil unions into the state constitution. But before the last lawmaker's vote was taken, supporters and opponents of the proposal were already looking past that action toward a costly campaign to win voters' support in November's popular referendum.

Opponents of the Republican-sponsored ban said they want Wisconsin to be the first state in the country to reject a proposed amendment, while supporters see the state as another chance to prove that upholding traditional marriage isn't just a Bible Belt issue.

With two years of preparation behind them, both sides promised a campaign that could run as high as several million dollars, include hundreds or even thousands of volunteers, and employ everything from the pulpit to Web sites and television ads.

"Wisconsin is significant because it's not a southern conservative state. It's not a state, I don't think, where the so-called religious right is considered to normally be a strong factor," said Peter Sprigg, vice president for policy at the pro-amendment Family Research Council in Washington, D.C. "It's important because it's illustrative of the fact that defining marriage as the union of a man and a woman has very broad appeal throughout the American population."

Tim O'Brien of the Human Rights Campaign, also in Washington, D.C., also saw Wisconsin as important to his gay rights group's efforts to oppose the constitutional bans that have swept many states.

"When you look at the national landscape right now, Wisconsin is a place in which we believe that we have a great chance of succeeding," said O'Brien, a former state resident who's working with state groups to defeat the ban. "I think that Wisconsin is just leaps and bounds ahead of any other state that has had this occur."

Things will be exciting here over the next few months, it seems. Gay rights groups should place special importance on defeating the anti-gay marriage amendment here in Wisconsin, because they think they can win here and maybe turn the tide on this issue nationally. The anti-gay marriage forces will need to respond strongly, and that may not play well among the general populace of this state. The amendment is broadly worded:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.

The second sentence goes beyond what is needed to satisfy traditionalists and takes a gratuitous swipe at benefits currently enjoyed by real families here in the state. I find it hard to believe that the decent, often religious citizens who think gay marriage is wrong will feel very good about the threat of depriving real individuals of insurance benefits. [ADDED: I'm referring to health insurance!] We will see these individuals in the TV ads, and the other side will be reduced to arguing that the language of the amendment doesn't really mean that. Trust us, they will say. Trust the courts to interpret the language of the amendment so that it won't mean the bad thing the gay rights groups are saying it will mean. You hypocrites! The argument for the amendment was that we can't trust the courts not to find rights for gay people in the unamended state constitution.

151 comments:

I wouldn't be too quick to assume it won't pass handily. Here in Ohio in 2004, the voters approved a very similar Constitutional Amendment, and it passed by a wide margin. Demographically and politically, we're pretty similar to Wisconsin.

Assigning a beneficiary of an insurance policy does not amount to "legal status identical or substantially similar to that of marriage for unmarried individuals".

I have my sister as my beneficiary and I don't even live in Arkansas! Likewise, you don't need to be married to give someone power of attorney or medical power of attorney. You also don't need to set up a quasi-marriage system such as "civil unions" to achieve the same benefits. Hell, if the proponents of civil unions or gay marriage were actually concerned about those issues (and they're not, really) it would take one lawyer one afternoon to put together a packet of these and similar documents together for each state.

If someone as fair and balanced as Ann (I saw you on FoxNews!) is going to demagogue the issue I think it's fair to say the fight in Wisconsin is going to get pretty nasty.

NB&S is probably right that it will pass handily. Probably 60%+ in support.

Ann also writes: "You hypocrites! The argument for the amendment was that we can't trust the courts not to find rights for gay people in the unamended state constitution."

Actually, it is not hypocritical at all to point out that regardless of popular will we can trust the courts to ALWAYS err on the left side of any issue. If that state of affairs changes over the next 50 years (and it probably won't) maybe then we could revisit the issue.

Final point. Ann says the second sentence is unneccessary, but it clearly isn't. Without it, the first sentence is essentially meaningless.

"Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state."

Well, assuming a limited civil union system is set up, what's to stop a court (and stopping the out-of-control courts is the entire point of the amendment) from expanding the scope of civil unions until they are exactly the same as marriage? Traditionalists (i.e. the vast majority of Americans on this issue) are not engaged in a battle to save the etymological meaning of the Anglo-Saxon term "marriage", rather they aim to preserve the institution. Ann seems to imply that they should be happy if at the end of the controversy we had "Marriage" certificates granted to straight couples and "Marrriage" certificates granted to any other grouping of any number of men and women.

Shady: You need to address the ugliness of threatening to deprive real families of their health insurance. Start by picturing some little children with cancer and then really think about the way your argument sounds to ordinary voters who are just trying to do what's right, maybe what their religion teaches them to do.

"Trust the courts to interpret the language of the amendment so that it won't mean the bad thing the gay rights groups are saying it will mean. You hypocrites!"

Uh, have they already made this argument? Nowhere in your post do I find they have. Hypocrites they may be, but maybe you should wait until they actually make the argument.

And why will strong action by the anti-gay marriage forces not play well with the populace of the state but equally strong action by the pro-gay marriage forces won't? The state assembly vote was 62-31. Doesn't the assembly come close to representing the will of the people?

History will not be kind to the framers of this amendment. Imagine using an American constitution to deprive rights to one group of individuals. Ugh. This is wrong on so very many levels.

What does one tell a gay neighbor couple if this passes? "I'm sorry there are people in this state who feel so threatened by your very existence" is about the best I could come up with. "If you want help packing to move somewhere more tolerant, I can help" I guess that would work.

Fundamentalism at its very worst. Note that I did not say Christianity, as there is absolutely nothing Christian about this amendment. Christ was a champion of the downtrodden and lampooned those who pharisee-like would pass moral judgements.

I agree with Ann -- Ohio and Wisconsin are miles apart politically. Look at our senators!

Pete: First, it's rude to say "uh" like that. Second, they are boxed in, where they are forced to make that argument. What is their alternative? You think I'm being too hard on them by anticipating the argument they have to make? Give me a break! These people are actively pursuing their agenda and deserve a strong response!

One of the authors of this Amendment was quoted as saying "marriage has always been between a man and a woman". Apparently he hasn't read either the Bible or an anthropology text. While sounding "reasonable", he is hoping this bill will get the unreasonable to the polls to pad decreasing support for his party.

Ann, you say "These people are actively pursuing their agenda and deserve a strong response!

That is akin to the kids who kill their parents and then beg for mercy because they are orphans argumment. This "issue" was raised and pushed by gay activists who tried to circumvent the political process by asking the courts to create a new set of rights for them. That the majority who disagree have chosen to react should not be held against them.

Secondly, no one is taking anything away from gays. They still have the same rights and freedoms and responsibilities of every other U S citizen no more no less. What is at issue is that they are not being granted the special privileges that have been traditionally reserved for married couples. Not granting a group a prefernce is not the same as discrimination.

Finally, your health care point doesn't hold up. Health care is not a right. It's a benefit. It's provided by employers. Any employer who wants to can offer health insurance to anyone they want to, and they do. This amendment won't change that.

Furthermore, health plans distinguish between dependants and spouses, so the child would be covered regardless.

Ann writes: "Shady: You need to address the ugliness of threatening to deprive real families of their health insurance. Start by picturing some little children with cancer..."

That's exactly my point about demagogary! It'd be as if the pro-amendment forces ran adds with men french-kissing and quoting the extremists in the opposing camp who loudly proclaim one of the chief benefits of SSM is the destruction of marriage as an instiution. Don't you think that would be equally demagogic and equally effective?

Either we will allow random groupings of adults to have "marriage" and thus debase entirely the institution that forms the bedrock of society or we will not. This is the deciding point.

I apologize for my gaff. I’m a guest on this site and I would never be intentionally rude. The purpose of my verbal tic, written out, was to help demonstrate my thought that you’d jumped the gun in calling the anti-gay marriage crowd hypocrites for an argument they haven’t yet made. Because I’ve seen you scold other commenters for making arguments about facts that weren’t in an article or your post, I thought that was the general rule. I can see now that leaving out that little tic, I can still make the same point. Again, I apologize and I promise not make the same error again.

Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.

I'd say that's pretty similar to what is being proposed in Wisconsin, with a second sentence that you probably wouldn't like, Ann. Since it was passed (by roughly a 2-1 margin), at least one lawsuit has been filed to stop state universities from provided health care benefits to same sex partners.

You are right that our rural areas are more Southern than Northern. Heck, I'm in Cincinnati and I can attest that it is more like Nashville than Cleveland. But Bush barely won here in '04, and Kerry barely won in Wisconsin. That's why I suggested a similar political climate--both are battleground states.

[Health insurance]'s provided by employers. Any employer who wants to can offer health insurance to anyone they want to, and they do. This amendment won't change that.

I disagree. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state. I read that to mean that benefits will not be extended to the un-married. And since gays can't marry, any same-sex benefits will vanish. I've also read the civil union benefits are at risk.

Which means this will be bad for business. Sure, it'll make insurance costs potentially cheaper, as unmarried partners are shed from insurance rolls, but when those people migrate to regions where partners are covered... Well, replacing skilled workers is expensive.

Gay marriage will not be a reality for quite some time in most states. On the one hand, you have an image of gentle church-going common folk making their case, then, opposing the ban, you have gay pride drag queens and lesbians donned in leather screaming at the top of their lungs about being no better off than slaves and abortion rights! Gee, since public opinion is tied to images in the age of mass media, I wonder which side will win??? The Gay Community has spent nearly three decades presenting itself as a collection of human oddities, using the tag line "We're Queer! We're Here! Get Used To It!". But now when the gay community is demanding the rest of society to treat them as normal human beings. Well, is it any surprise that they are losing this battle? This is an over simplification of why we are failing to sway public opinion, but I believe it plays a pretty large part of the process. But, the rhetoric spewed by the gay rights groups would have you believe that their failure to sell the idea of gay marriage fairness, to connect to the average Joe or Joan, is because of right wing fascists. A Gay Marriage ban passed in Oregon, hardly a right-wing bastion. And California can't even get a proposal on the ballot despite the screwy initiative process here. Hell, we got an initiative on the ballot a few years ago banning all human consumption of horse meat (I think it passed), even if there is a religious or cultural reason to do so (how's that for tolerance), but we in liberal California can't get gay marriage on the ballot? The ONLY reason gays can now marry in Mass. is because of an activist court decision. I do want to be able to marry my partner, but I'm not a fan of having public policy mandated by the courts.

Dang, dash took all of my points so no point in re-hashing 'em here. But I haven't seen anynone else address MadisonMan's assertion so I'll take it up.

A private employer can extend health insurance to whomever it wants and this law won't prevent them from doing so. It's the flip side that won't happen: employers won't be forced to provide health insurance to gay partnersif it doesn't want to. Disney voluntarily covered gay partners in Florida - nothing personal, just business, an attempt to attract and keep employees - but eventually dropped the program for the very same reason - business.

A private employer can extend health insurance to whomever it wants and this law won't prevent them from doing so.

Well, I work for Madison's largest employer, the State. When extending health benefits to unmarried couples, why should the state care if they are gay or not -- or married? Isn't commitment the standard by which the union should be judged? (Interesting that this topic follows so closely the one on The Widow Anna Nicole Smith)

I've read several references to Massachusetts in this thread. What, exactly, is so bad that has happened there? Gay people can have their unions recognized by the State. They get benefits that are equal to those of heterosexual couples who are married. I don't see that the World As We Know It has ended there.

Dash: "Finally, your health care point doesn't hold up. Health care is not a right. It's a benefit. It's provided by employers. Any employer who wants to can offer health insurance to anyone they want to, and they do. This amendment won't change that."

Those are the exact same arguments I came to make, but you beat me to it.

The way Ann made it sound, health insurance was an established right that would be ripped from same sex couples, and their children, should this come to pass. It made me wonder if I had missed the passage of a new US Constitional amendment establishing health insurance as an unalienable right.

I am an employer, and if I so choose, I could write our company's insurance benefits to include distant cousins and pet fish, marriage amendment or no marriage amendment.

Madisonman writes: "When extending health benefits to unmarried couples, why should the state care if they are gay or not -- or married? Isn't commitment the standard by which the union should be judged?"

Well, no. "Commitment" can't be the measuring stick because it can't be judged. Are proponents of this view picturing the movie Greencard - with state bureaucrats asking questions like, “what face cream does Bob use?” and “Does Earl sleep on the left side or the right side of the bed?” or even “Which of the four of you generally prepares the communal meals?”

Would “commitment” be evident the case of two (or three) straight best friends who continue to date others but declare themselves committed to gain access to health insurance benefits? Could all the neighbors on a block, or all the residents of a town declare themselves committed to each other?

The solution to this “problem” is to simply leave marriage alone. The institution is so important (even if imperfect) that a society risks all when meddling.

As a gay man, I can understand, if not agree with, the reasons why so many straight people oppose gay marriage. The institution has such deep-rooted religious and cultural history that some will see a threat to their values in any attempt to broaden its meaning. This is particularly true when the vehicle for change is the courts and not the democratic process.What I can't understand is why opponents of gay marriage are equally zealous to ban legal recognition of domestic partnerships. Society benefits from arrangements that promote stability, monogamy, and mutual responsibility in unmarried couples of all persuasions. Opposition to these values can be explained only by bigotry in its most rabid and repulsive form.

madisonman: "I must note that healthcare benefits are just one of a laundry list that marriage bestows. The rights of inheritance, hospital visitation . . . on and on. Again I will ask: what does one tell a gay neighbor couple if something like this passes?"

Hire a lawyer to draw up a will and a durable power of attorney agreement.

This whole insurange arguement is a non sequitur; if you want health insurance, and it's not provided as an employer-provided benefit, then pick up a phone, call BCBS, and tell them you're in the market for some health insurance. They'll be happy to sell you a policy.

Listen, no one provides me, nor millions of other people, with the employer-provided benefit of car insurance, yet I and millions of others have car insurance.

That said, I went a couple of decades without any health insurance, and it didn't stop me from going to the doctor when I needed to. I couldn't always pay the bill in full, but hospitals and clinics are more than willing to let you pay a little each month.

This whole attitude that if you're not provided with insurance that you can't have insurance, and that if you don't have insurance that you are prohibited from access to health care is nothing more than intellectual laziness.

Good arguments all, and I salute the gay poster who reminds us that it was gay activists themselves who have pounded home the stereotype of the odd, promiscuous "queer," and equally that we should just get over it. Well, most people have, and it's a simplistic slur to say any opposition to gay marriage means naysayers cannot "tolerate your very existence."

Insurance is a non-issue. If you have a kid and need insurance, you're going to have to go to work for the government or big corporation like everybody else to get it. That's equality.

However flawed the proposition, I think we need to have this issue debated on its merits before running to the courts. If nothing else, the discussion will reveal whether or not there really is a "gay community" that represents gay thought, or if that's even possible. Discussion of the second sentence will tell us whether or not remedies exist already for legal problems of gay families or whether something else is needed.

I agree with Shady: it's time to get down to the basic issue of what marriage is, what we fear it could become, and what we want it to be in the future.

Not sure I understand the "threat to marriage" argument at all. I know many gay couples who consider themselves married, how does that have any impact on my marriage of 23 years? What does one have to do with the other? One could make a better case that infidelity should be criminalized. The second sentence of the referendum, that prohibits anything similar to marriage, shows what squirms underneath this supposed marriage protection bill.

Insurance is NOT an issue? We only want benefits? Let's examine this just a bit further shall we?

1. I was born gay. It was not a choice.

2. If I was born that way, why am I denied the act of marrying the partner (one not multiples, not animals, not relatives, not children) ?

3. Why should I live my life just like everyone else, pay your school taxes even with out children, obey all laws and yet not be allowed to be protected financially as well as spiritually to my partner?

To the uninformed who say, "just go to a lawyer and get those protections", you are sorely lacking in your investigative powers. There are over 1000 benefits to marriage. It is not about "give me benefits" it is about fairness. A lawyer's fees for all of these benefits would bankrupt most people. AND the one glaring errror on your assumption is that these documents are fully supported by the law.

If the state constitution says you can't create unions similar or identical to marriage, what do you think would happen when someone challenges my legally drawn up documents? If my parntner and it pay (dearly) for a power of attorny and one of us ends up in a hospital, they could say, you know that the state does not recognize your marriage so your legal documents hold no weight here. IT has happened. It happens every day when families get greedy and cut out surviving partners. This is just one of the benefits we are talking about. The list is enourmous.

There is NOTHING different about my love, level of commitment and devotion to my partner than yours. Why should I be told that I am a second class citizen and should not have basic protections afforded by a public commitment to grow a stable loving home life and family?

You can keep the word marriage. You shouldn't however fight against Civil Unions.

I do love the people who use the Bible as their argument. Yes, the Bible mentions marriage as a religious institution. That is all however. All the benefits given by the federal government and the state government are societal constructs. They have NOTHING to do with religion. If religion is your argument you have not right to extend your fight to benefits given under these civil unions.

Gee, you would think that we want to hurt you. Nothing could be further from the truth. Sigh.

Hire a lawyer to draw up a will and a durable power of attorney agreement.

And the reason a committed gay couple must do this but a married couple doesn't have to is...?

Marriage bestows rights on the married. It seems to me, at least, that gay couples are (rightfully) asking for the opportunity in the future to have those same rights. (Who knows when that will be -- marriage between two men or between two women is illegal in WI) This amendment shuts that door, for no good reason.

In Ohio even the governor opposed the measure because several large corporations threatened to move their home offices out of the state if it passed. The Ohio eqivalent of Wisconsin Manufacturers and Commerce opposed it. It passed anyway because it speaks to peoples deepest primal fears.

Here, WMC is silent because they know it's good for the Republican party and the Republican party is very good to them.

As for insurance, it will soon be a moot point because it's the Republican's goal to eliminate employer paid health insurance and replace it with medical savings accounts. Except for top level executives who will get fully paid high end coverage.

Nasty, Brutish & Short: "You are right that our rural areas are more Southern than Northern. Heck, I'm in Cincinnati and I can attest that it is more like Nashville than Cleveland. But Bush barely won here in '04, and Kerry barely won in Wisconsin. That's why I suggested a similar political climate--both are battleground states."

Bush won because of national security. You can't count votes for Bush as votes for social conservatism. Let me remind you that we also reelected Feingold. Our other Senator is a Democrat and so is our governor.

On the insurance point, I'm talking about families where one person works for the state government and currently is able to provide the whole family with benefits. Some people are threatened with the loss of benefits they now have. This argument doesn't depend on an assertion that they have a constitutional right to benefits! I'm talking about the political presentation of the issues that we will see. I'm saying that those who oppose the amendment have very good ways to make compelling, sympathetic arguments that the proponents should have difficulty countering. This is a referendum, not a court battle right now.

And I fail to see the point of saying that some gay rights activists don't look like they have traditional values. You could say the same for heterosexuals, who often dress up in an exaggerated sexual way. That doesn't mean other people should be disrespected or even, really, that they should be disrespected after they come home from their revelries. Look at all that heterosexual showing off that took place at Mardi Gras. Is there some reason to stop giving special benefits to marriage because of the exaggerated behavior of a few overexuberant heterosexuals?

Anyway, here are my pictures from a Madison gay rights parade. I challenge you to look at these people and explain why you think they are marginalizing themselves by parading. Parading is a long American tradition!

Finally, your health care point doesn't hold up. Health care is not a right. It's a benefit. It's provided by employers. Any employer who wants to can offer health insurance to anyone they want to, and they do. This amendment won't change that.

Furthermore, health plans distinguish between dependants and spouses, so the child would be covered regardless.

1. Wisconsin is unlike Ohio, Michigan, and every other state where similar bans passed because they had only a few months to eduate their voters, and we have been educating for over 600 days and will continue to educate until the last second. In other states, they were on the defense from the start, and never had time to talk about the second sentence banning recognition of relationships substantially similar to marriage. We do, and we are. Plus, I've lived in all three of those states. They are all very different.

3. If you think we should believe legislators or other proponents of the ban who say this won't affect health insurance, check out what happened in Ohio, where the attorney who drafted the ban claimed it wouldn't affect DP benefits and the moment the ban was passed sued Miami University to stop it from extending such benefits.

4. A huge number of benefits that come with marriage or civil unions cannot be bought through legal documents, no matter how much spare cash you have: spousal privilege from testifying against your spouse, social security and survivor's benefits, child custody rights, the ability to file taxes jointly, etc. And why should we who have been in long-term, committed relationships, pay our taxes, contribute to our communities, and shovel our sidewalks have to spend thousands of dollars on legal documents to get a fraction of the rights and responsibilities that britney spears can get with any tom dick or harry and an elvis impersonator JP for free (and then throw away for fun 47 hours later)?

5. Mark Gundrum, the ban's primary sponsor in the Wisconsin legislature, HAS said that we should leave the meaning of the second sentence to the courts. Ann's right, its a completely hypocritical argument. We can't trust the courts, but we should trust the courts.

6. This ban will not pass in November. We will turn the tide in Wisconsin. Fair-minded Wisconsinites will win. Vote NO in NOvember.

I hope folks can listen to what issues are really presented and that folks presenting issues do so clearly. And I hope folks listen to citizens, not just interest groups. We've spent decades learning that it's wrong to expect one person to speak for folks "like them" as in don't expect the one or two [choose statistical or ethnic minorty group] folks in your office to speak for and educate you about the folks you don't know. Why expect gay rights groups to speak with one voice when there's a diversity of experiences and interests among gay folks?

As for education, a few points:

1. It's not the case that "everyone else" has to go to work to cover a partner with health insurance. An eligible employee can cover a spouse--whether or not that spouse has other medical insurance, in some cases-- but that's not the case for non-spouses in a long-term domestic relationship. Further, even those who cover their domestic partners do so differently than married folks: the value of the benefit is imputed as federally taxable income. State tax laws may differ.

2. While folks can get POA and a number of other documents to ensure domestic partners are able to make financial and legal decisions for each other, getting an iron-clad document requires hiring the services of an attorney, whereas civil unions require a one-time licensing fee: prove the relationship, attest to it, pay fee: state laws govern.

3. The medical decisions matter is crucial, because there's default in many states to family members or spouses. In some states, when the policy is family-only in the ICU, what does a domestic partner do?

4. There's also inheritance. Many agree folks should be able to decide who inherits an individual's property, through a will. If you're married, while it's a good idea to have one, you don't NEED one to leave property to a spouse. Further, it's not settled in all states whether family members can contest wills leaving property to non-spouses (remember, too: common law mariags are recognized for this purposes among opposite gender couples, but not same sex couples, necessarily.) Further, inheritance taxes favor spouses and (recognized) family members.

Sure, for all sorts of reasons, folks chafe at the word marriage for non-traditional relationships and chafe, too, at civil unions as though they were the same as marriages. I am well versed in the traditional religious/sacramental argument. But I really don't "get" why folks who beleive in indvidual liberties don't see that civil unions are the simplest way of a) limiting tovernment intrusion into people's lives; b) conferring both rights and obigations on the parties; and c) differentitating between those who make commitments about e.g. the resources mentioned above and those who choose not to do so, no matter where they lay their heads at night.

Having said that, I do wonder: if in 1964, state referenda were held concerning all manner of civil rights, would such laws have been passed? The issues are not the same, but it's such an easy vote to say "no" to laws that have no immediate benefit for the individual who is voting.

Kent,Our society, like every society, denies the right to marry to many, many people, not just gays or (in the past) biracial couples: various blood relations, and even further, the spouse of one's child, for example in many states; mentally ill people; more than two people at one time.

For the record I have no objection to gay marriage. I can't speak for anyone else. And I don't doubt for one minute the depth of your commitment to your partner or the benefit to society of such a union. But the marriage issue is bigger that the restriction against gay marriage alone, and I do think we need to admit that. Love is not the only criterion. You will hear worse, I'm sure, in the months to come.

The first sentence of the Amendment is an understandable provision, though one I personally disagree with. The second sentence is legislative gay-bashing, pure and simple. I don't really see how you can debate that.

Marriage is a religious institution. For a long time, the state had an incentive to encourage marriage because it needed to populate the country. Today, formal marriage, as opposed to mere cohabitation, serves several puposes, concerning property, taxes, and religion. No court is forcing any religion to recognize gay marriage, but if the state is going to do it, it can't limit its benefits only to straight couples. It doesn't have to call it marriage, but there should be something to recognize gay families. To the extent that marriage serves a state's interests -- in stability, raising children, promoting safe sexual behavior, and so on, it has an interest in formally recognizing gay partnerships. As far as I can see, there is no good way to rebut that, other than pure gay bashing.

Traditionalists (i.e. the vast majority of Americans on this issue) are not engaged in a battle to save the etymological meaning of the Anglo-Saxon term "marriage", rather they aim to preserve the institution.

Well, two points to be made here. I don't think a "vast" majority of Americans are really "traditionalists" in any coherent sense. Probably the majority of opposition to gay marriage has no firm theoretical foundation (e.g. traditionalism), and stems from a sense that there's something fundamentally off-kilter about the idea of gay marriage.

Second point: "not engaged in a battle to save the etymological meaning of the Anglo-Saxon term 'marriage'"?

I think, honestly, that is what a lot of opponents of gay marriage are struggling to do. Because marriage as an institution, or even just as a shared cultural concept, has already been destroyed. No fault divorce, casual adultery, trial marriages, tawdry celebrity marriages, and perhaps most significantly, wide disagreement over how marriage fits together with the family and the continuation of families across generations through children, have all combined to rip its heart out.

My sense is that marriage used to be about family and children. About lying back and thinking of England (as it were), and doing your duty by your ancestors, and raising your children up properly. And my sense is that marriage nowadays is about nothing more than two individuals finding happiness in each other, and if they choose not to have children, and run away from their families, well that's their choice. And if they choose to divorce, well, no one's going to give them the hairy eyeball or snub them in the street as a result.

As a result, I think trying to bar gay marriage is a vain attempt to shut the barn door after the cows are long, long gone. Traditional marriage, outside of a few dedicated pockets of society, is dead as a doornail.

As a practical matter, too, gay marriage is so unlikely to be anything more than an extremely marginal presence in society, that I think trying to pin responsibility for the death of traditional marriage on this tiny, marginal group really is a kind of scapegoating. People sense that somehow, the "institution" of marriage got terribly distorted at some point, but they don't actually want to have to knuckle down and give up the freedoms people gave up under the old model of marriage, so they blame it on this discrete outside group. I know that's an ad hominem of sorts, but I do think that's at least a bit of what's going on in the gay marriage debate.

To those who claim that homosexual relationships, if not all sodomy in general, should be banned by the state, consider this. The Bible also prohibits touching the skin of a dead pig, planting different crops side-by-side, and wearing clothes spun from two different fabrics. It also prohibits adultery and working on the sabbath.

If the state of Wisconsin wants to ban the Green Bay Packers, the Milwaukee Bucks, the Wisconsin Badgers, police and firemen working on sundays, criminalize all adultery, severely limit the agricultural industry, and banning all cotton/poly, spandex/lycra, and wool blends, then I will say to you that you are not a hypocrite.

criminalize all adultery, severely limit the agricultural industry, and banning all cotton/poly, spandex/lycra, and wool blends

Criminalising adultery and banning blended synthetic fabrics sound just great to me! But more seriously, the argument that sodomy (or, per Justice Scalia, masterbation) ought to be criminalised need not rest solely on Biblical grounds, even if the majority of people supporting bans on sodomy (or, say, shellfish) are most likely arguing from Biblical grounds.

Bush won because of national security. You can't count votes for Bush as votes for social conservatism.

Point of clarification – defining marriage as “one man and one woman” isn’t just “social conservatism” it’s the social mainstream as evidenced by the fact that it almost always wins hands down (just as it did in two States that went for John Kerry in 2004) when people actually get to vote on it rather than have it shoved down their throats by an activist court.

On the insurance point, I'm talking about families where one person works for the state government and currently is able to provide the whole family with benefits.

Great, just the thing to get the taxpayer’s rights activists out to the polls who are sick and tired of paying high taxes in order to provide overly generous benefits to government employees.

Of course it goes without saying that Shady’s original point that there is a difference between a “spouse” and a “dependent” for insurance purposes and that the child(ren) of the State employee would be unaffected still stands.

Thank you for posting pictures of summer! Boy I could use a warm Spring day.

We now return you to your regularly scheduled program.

I will agree that arguing about insurance is not the way to show disparity. But pointing out that committed gay couples can be compelled to testify against each other, and that they don't automatically inherit, and that they can be excluded from a hospital -- well, it's a long list of special treatment for married couples that are per force excluded to gay couples. And why?

Ann, maybe the reason Bush did as well as he did in Wisconsin was because of national security. But I suspect he also got a substantial increase in "values voters," who agreed with him on things like abortion and same sex marriage (and who viewed Kerry's support of same sex unions as too nuanced). I can tell you that a lot of politicos in Ohio believe that having the same sex marriage ban on the ballot here in 2004 actually caused the Bush win (putting him over the top in the electoral college as well). The theory is that the marriage amendment drove turnout. It got 500,000 more votes than Bush did.

Personally, I don't actually believe that single-issues drive voter turnout in presidential elections. The voting public is smarter than that, and looks at several criteria when making a decision in a presidential race. But I do believe that if same sex marriage had been on the ballot in Wisconsin in 2004, Bush would have gotten the 12,000 more votes that he needed to win WI.

Because my billable hours are didn't stink enough in February, I checked exit poll results, and the "most important issue" people in WI gave for voting in '04 was "moral values" at 21%. Terrorism came in second at 19% (tied with economy and jobs, also at 19%).

Ohioans said moral values 23% of the time, and terrorism 17% of the time. So maybe there is a difference between WI and OH. But not much of one. And I have to respectfully disagree with you Ann, when you say that Bush won in '04 because of national security.

You can check the exit polls at http://www.cnn.com/ELECTION/2004/pages/results/

Terry, don't forget the mildew or the complicated rules regarding menstruation. If any women start arguing about homosexuality using the laws of Leviticus as an example, I suggest asking them, politely, if they're menstruating. Wouldn't want to make all the chairs in the legislature unclean!

I would, however, refrain from using the term "gay bashing" to describe what you consider legislative action motivated by anti-gay animus. Gay bashing refers to physical violence and conflating the two, however misguided the anti-gay words or feelings, is not accurate or fair.

First things first: we will win in November, and we will be the first state to do so. Here's why: Wisconsin residents care about fairness, and the issue will be correctly framed as such.

It is certainly not fair that I work the same number of hours (or more) than my colleagues, pay the same taxes (or more) than my colleagues, but I can't protect my child's future with health insurance, social security, and hundreds of other state sanctioned (and funded) benefits that are automatically provided my friends, neighbors and co-workers.

It is not fair for some state workers to get family leave to care for their sick partners, children, or arents, and others are denied that ability.

It is not fair that a legislator who was divorced two times stands up to claim that the problem with marriage is gays and lesbians wanting to get married.

It is not fair that gays and lesbians have to resort to legal documents that may or may not protect them. I am a Wisconsin lawyer. I can tell you that it is absolutely impossible to draft legal documents to accord the same or even similar rights as a simple marriage certificate accords people who can get married after only knowing each other a few days. I don't care how well I draft something, adoption is illegal, estate and gift taxes apply to transfers of property, and the health insurer does not have to put the person on group health insurance. That's not fair.

What makes Wisconsin diferent? We already have people of faith in our corner. Church leaders representing 500,000 Wisconsin parishioners have already come out against the amendment. 17-18 newspapers that supported Bush in the election have already come out against the amendment.

Finally, we have the benefit of hindsight. In Massachusetts, the Republican legislature changed their votes and stopped the amendment in their state after they saw that nothing bad happened when gay marriage became legal. We also know that the second sentence of the amendment has been used to eliminate health benefits and to eliminate domestic violence protection.

We are not the fringe side, but the moderate side. Supporters of the amendment include Fed Phelps, who currently travel around the country protesting at funerals of soldiers, stating that their deaths are connected to gay marriage (complete with signs such as "Thank God for IEDs"). Julaine Appling has been quoted as saying "We let them live where they want to live. Isn't that enough?"

No, it is not enough. Fair minded people, straight gay Republican (especially Republican) Democratic, Independent, will vote No on this amendment.

Ohioans said moral values 23% of the time, and terrorism 17% of the time. So maybe there is a difference between WI and OH. But not much of one. And I have to respectfully disagree with you Ann, when you say that Bush won in '04 because of national security.

This isn't quite determinative -- the question is not what issues were in play, but what issues drove swing voters. Here, the argument with respect to national security might be that while moral-values-voters are solid Republicans anyhow, national-security-voters were determinative, because they were up for grabs. I mean, it's entirely possible that you could get a poll where the largest single issue-bloc actually votes for the losing side in the election. What matters is those swing voters.

Thorley said: Of course it goes without saying that Shady’s original point that there is a difference between a “spouse” and a “dependent” for insurance purposes and that the child(ren) of the State employee would be unaffected still stands.

This is not true. In Wisconsin, same-sex couples are not allowed jointly to adopt their children. Current schemes to allow lesbian and gay government employees the same benefits packages afforded to nongay employees therefore often provide health insurance both to the employee's domestic partner and that partner's legal children.

In cases where both women are parents, but only the stay-at-home mom is the legal parent, this amendment will potentially take away children's health insurance. And these are exactly the kinds of couples we can expect to see in television advertisements.

On another note, Wisconsin is profoundly different from Ohio.

* Thus far in Wisconsin, more churches have taken formal positions against the civil unions and marriage ban than for it. These churches represent nearly 500,000 congregants.

* Nineteen newspapers have already editorialized against the ban, including twelve who endorsed George W. Bush in 2004.

* As a previous poster notes, Wisconsin has had over 600 days already to campaign against the ban.

* Wisconsin was the first state in the union to include sexual orientation in its nondiscrimination statutes, a measure signed into place by a Republican governor.

* During the 2004 election, 12% of Wisconsin voters gave their governor ballots to outspoken supporters of marriage equality, Libertarian Ed Thompson and Green Jim Young.

* Wisconsin sent the first openly gay nonincumbent to Congress.

* In 2004 several states faced bans, thus making financing harder to come by. In 2006, there will be only two competitive amendment fights, here and in Arizona.

* Already, debate and media coverage in Wisconsin concerns the second sentence. Already, that is, this has become a debate that far, far exceeds the question of marriage.

* And dare I say, based on our congressional delegations, Wisconsin is independent. Ohio tows the line.

Wisconsin is much more analagous to Oregon than Ohio. Republicans in Oregon knew to present them with a simple one-sentence marriage definition amendment. Republicans here have overstepped and, come November, we will turn the tide.

"I'm not surprised at your insult. In all your posts, I have never heard an ounce of respect for straight people: we're all either homophobes or fag hags." - PatCa

Darn right it's an insult. Now if only you'd be honest and admit that you are insulting 20 million gay Americans when you say that we should not have the right to marry or adopt. I can't help but laugh at how you instantly go on the defensive when somebody proposes taking YOUR rights away. You have no problem taking away mine.

Unfortunately - I have a hunch that the comparison will be lost on you . . .

Dan Savage said it best. The opposite of a gay activist is a gay doormat. And I have zero intention of being a doormat.

And sorry - I have lots of respect for straight people. Many straight people. You won't find many more people who are more forceful defenders of gay rights than Ann Althouse.

Darn right it's an insult. Now if only you'd be honest and admit that you are insulting 20 million gay Americans when you say that we should not have the right to marry or adopt.

Well, be fair -- he's saying (as gay marriage opponents in general are saying) that you do not have the "right" to marry another man (gay = man, right? I forget these things). You still have the right to marry. The problem is that you have to establish that marrying someone of the same gender is the same as marrying someone of the opposite gender. And there, that comes down to what you think "marriage" is, and what you think its purpose is.

If, having read reams of novels about unhappily married couples, and drunk deep of the mediaeval notions of romance, you think the notion that marriage is all about love and well-tailored for human happiness is dottily idealistic, and think it's mostly about children and bloodlines and family honour, then the idea of gay marriage may seem like it sort of misses the whole point of the thing. If you think it's about Adam and Eve and all that, again, Adam and Eve are a man and a woman, not a man and a man or a woman and a woman, and the idea of marrying a man to a man will probably seem awfully silly.

On the other hand, if you think marriage is there for people who love one another, so they can be happy together and collect tax benefits and evidentiary privileges the way a boyfriend and boyfriend (or boyfriend and girlfriend, for that matter) cannot, then gay marriage will seem perfectly natural.

And there are of course other ways of looking at it.

But in any event, the two of you almost certainly see marriage as different things. He's not insulting you.

Which is why I talked about marriage. You conflated marriage and adoption, not me.

The argument against gay adoption is different, and rather harder, since sterile people and sterile unions have been adopting children to serve as their heirs and successors for thousands of years now. Caesar, for example, who seems to have been quite infertile despite his many, many seductions (of both men and women). But I'm fairly certain it's possible to come up with a perfectly respectable argument there as well.

Without first jumping to "you are insulting me!"

As a possibility (not meant seriously -- but I find it amusing) recall that many, many adoption agencies strive to place children with parents of the same race. If we maintain the analogy between race and sexual orientation that is often proferred in the marriage context (cf. Loving v. Virginia), what's the error in allowing the children of an heterosexual union to be adopted only by other heterosexuals?

There are better arguments I am sure.

I am VERY tempted to find a nice Catholic girl, then marry here, then tell her I'm gay, then say "What are you going to do? Divorce me?????"

Oddly enough, this reminds me of a Japanese case -- I forget the name, but I can probably find it if anyone is really interested -- in which a man and a woman marry, or have their marriage arranged, and then the man discovers that his wife is, in fact, infertile and sickly, and that this was concealed throughout the negotiations between the family. He argues for a divorce (under divorce laws rather less permissive than our own). Is this comparable? I am not a Catholic (I am not even Christian) so I don't know how they treat this situation, but it seems as though there is a colourable argument that such would be a marriage procured by fraud.

On the other hand, though, so long as you refrain from adultery and perform your husbandly duties to satisfaction, what has she got to complain about?

But the amendment reads Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state.

I don't see the word "gay" there, but I do see the word "one." Seems to me this is just as oppressive of polygamists as of gays. Don't polygamists have rights? Don't they need health insurance? How come nobody sticks up for them?

Energetic conversation here. I don;t think there is a single state whose voters would approve gay marriage. Re Wisconsin, it's pretty far from conservative but it, like others, tends to re-elect senators like Feingold (who are not really one with the average resident) because the senator has seniority, has not embarrassed the state or is fairly impressive in office. Here is Pensylvania, we kept re-electing dullards for that very reason.

Oh how I loathe the "you already have the freedom to marry - someone of the opposite sex" argument. Talk about pedantry. It's sort of like saying "hey, black man, you already have the right to drink out of a water fountain- a blacks-only water fountain".

I don't, however, think that Dan Savage is right- the opposite of "activist" (oh how I loathe that word) is not "doormat". I can consider myself an advocate of equal legal rights for gay couples (marriage? who cares, that should be a matter for the individuals to decide) without being branded an "activist". I think the fundamental seriousness of a person should be called into question when they think that licking doorknobs is acceptable political discourse.

Talk about pedantry. It's sort of like saying "hey, black man, you already have the right to drink out of a water fountain- a blacks-only water fountain".

Oh come now -- you disappoint us! The usual analogy here is the anti-miscegenation laws, isn't it? "You have the right to marry, just not the right to marry someone of a different race!"

But calling it "pedantry" sidesteps the issue. Because for me, while I have no particular problem with gay marriage (as I suggested further above, I think these attempts to defend "traditional" marriage are coming way, way too late to do anything), the idea of gay marriage nevertheless strikes me as bizarre. It does not compute.

Or rather, I mean, it computes in a narrow "I want these benefits" sense, because who doesn't want benefits if you can get them? But not in a deep, passionate "I want to get married" sense. Because marriage, the way I see it, is not about tax breaks, health insurance, and evidentiary privileges. Those are just results of the law being written around the social fact of marriage (cf. Griswold v. Connecticut, the bit at the end). It's all about the children and the bloodlines and the family honour. Or duty rather. And gay marriage doesn't do any of that -- you still have to reach outside the marriage and adopt, for your heir.

So, much as it pains me to confirm a hateful stereotype of gay men -- we will put anything in our mouths -- I started licking doorknobs. The front door, office doors, even a bathroom door. When that was done, I started in on the staplers, phones and computer keyboards. Then I stood in the kitchen and licked the rims of all the clean coffee cups drying in the rack.

Oh that is vile!

Among other things, though, he claims his sinuses were leaking. He could just have smeared mucus on the doorknobs or something and got the same effect. He didn't have to lick. That's absolutely disgusting. And gratuitously so!

2. I don't agree that the second sentence will affect health insurance. Do people have to be married to get private family health insurance? Can the state, and will the state, pass a law preventing people from getting health insurance because they aren't married, or because they are gay? I think most definitely not.

3. As a consequence, Professor Althouse, you have set up a hideous strawman. You, a law professor...

I don;t [sic] think there is a single state whose voters would approve gay marriage.

Polls consistently show that a majority of Massachusetts residents now favor marriage equality, which makes sense. They are the folks for whom the issue is most familiar and, hence, most comfortable.

The conversation here supports Professor Althouse's point, that the second sentence of the proposed Wisconsin amendment is, in many ways, indefensible. And to defend it, supporters will be forced to resort to predictions they cannot plausibly make.

The debate in Wisconsin is not the debate occuring on this page. Our debate--now our referendum--is about (1) whether the Constitution is the right place for a heterosexual definition of marriage; and (2) whether the Constitution should prohibit civil unions as well as seriously jeapordize existing domestic partnership arrangements.

It's interesting to remember where this whole constitution-amending thing started, Hawaii. There, in response to a state Supreme Court decision granting equal civil marriage rights, voters almost ten years ago passed the first of these things. Here's the language they added to their Constitution:

"Section 23. The legislature shall have the power to reserve marriage to opposite-sex couples. [Add HB 117 (1997) and election Nov 3, 1998]."

Read that amendment. Then read Wisconsin's proposed ban on civil unions and marriage. What a distance, no?

ShadyCharacter wrote, "Either we will allow random groupings of adults to have "marriage" and thus debase entirely the institution that forms the bedrock of society or we will not."

Please tell me, specifically, how my marriage of 10 years will be debased if it becomes legal for TWO (not random groupings of) same-sex people to get married. Please don't resort to religious arguments because my wife and I are both athiests and were married by a judge.

People who are *truly* concerned about "defending" marriage should be trying to outlaw things like instant marriages in Las Vegas, or perhaps TV shows like "Who Wants to Marry a Millionaire." Or even, as another commenter noted, infidelity.

I just don't see a reason NOT to allow gays to marry. It just strikes me as an appeal to that part of everyone's soul that is hostile and bigoted toward the unknown. We all have it in us. Our leaders can appeal to the best parts of ourselves (think Kennedy asking what we can do for our country) or the worst parts. With this issue, the GOP has struck electoral gold by appealing to the dark side of our minds and stamping it with a seal-of-approval from Christianity!

It's all about the children and the bloodlines and the family honour. Or duty rather. And gay marriage doesn't do any of that -- you still have to reach outside the marriage and adopt, for your heir.

You're perhaps thinking of guy marriage, not gay marriage. Women in same-sex relationships have biological heirs all the time.

Of course, you're also placing the kind of emphasis on biology that demeans infertile couples who rely on reproductive technologies, families created through adoption, and the children those families nourish and support.

Karl Rove (I know some of you don't like him, but he least deserves a little evil genius street cred!) believes that 4 million more "values" voters turned out in '04 than in '00. It was his goal to bring these people on board and push Bush over the top. These were people who were NOT a predetermined part of the Republican base, because they were disaffected non-voters in '00. So it is not accurate to say that these people would have voted for Bush anyway.

"Because for me, while I have no particular problem with gay marriage... the idea of gay marriage nevertheless strikes me as bizarre. It does not compute."

Talk about cognitive dissonance! You disappoint us!

Children? Bloodlines? Family honor? Come on! You just said a few sentences before that "Traditional marriage" was dead in the water.

I'm proposing a new amendment- that if opposite sex couples who get married do not produce offspring in a certain amount of time, their marriage shall be declared null and void and all benefits thereof shall be removed. After all, it's about children and bloodlines and family honor after all! If you're not pumping out mewling infants, you've failed the 1000000000 year old institution of marriage!

2. I don't agree that the second sentence will affect health insurance. Do people have to be married to get private family health insurance? Can the state, and will the state, pass a law preventing people from getting health insurance because they aren't married, or because they are gay? I think most definitely not.

3. As a consequence, Professor Althouse, you have set up a hideous strawman. You, a law professor..."

Answers:1. Good, you're starting to get it.

2.Yes, families must be married to get family health insurance. I can't put my partner or our daughter on my family health insurance. The second sentence embeds this disctrimination into our constitution.

3. The only strawman is the people contending this thing doesn't really mean anything. Oh yeah? Then explain why the Republicans vetoed an amendment to remove the second sentence while retaining the first sentence!

Leeontheroad makes some good arguments--much more beneficial to your cause in the long run than namecalling. Re your rhetorical question about a referendum on the civil rights bills, though, the Congress and Senate passed these bills by wide margins (yes, after lots of lobbying and haggling). That would indicate the majority of their constituents were in favor or at least would not object to its passage, wouldn't it? Why should gay marriage now get a pass?

You will only win by appealing to the center. Address the philosophical questions raised here. Convince them! If spokespeople continue to make the classic Democratic Party mistake--villifying all opposition as knuckle dragging religious cretins--gay marriage will fail.

You're perhaps thinking of guy marriage, not gay marriage. Women in same-sex relationships have biological heirs all the time.

By reaching outside the marriage for a donor. Strictly speaking, if they have a female friend willing to go to the trouble, a gay couple can have a biological heir that way too.

Of course, you're also placing the kind of emphasis on biology that demeans infertile couples who rely on reproductive technologies, families created through adoption, and the children those families nourish and support.

Yes, and? You could say I'm doing the same to gay marriages too, because I am, and that's practically the point of what I'm saying. You forgot to add that I'm implicitly looking down my nose at bastardy too. Because that's the clear implication of what I've said.

But more generally, you're just pointing out that my view of marriage and what a marriage ought to be -- my conceptual archetype of marriage -- is not the view of marriage prevalent in the wider population, and certainly not reflected in the law. And it is decidedly not.

But marriage, as I see it, is not about sweetness and light and making everyone feel that every marriage (or every family structure) is absolutely equal. It is not about saying that all there is to marriage is the forms and the motions, and if you match up the forms and go through the motions of the ritual, you have, there, a marriage in its true Platonic form. It is not about that any more than it is about saying a single-mother household is just as good as and just the same as a two-parent household, which is no better than a five-parent polygynous household, or a furtive two-parent household living in the shame of the shadow of incest.

Whenever there are definitions, someone is going to feel left out. But that doesn't make those definitions wrong.

Re: Palladian

You just said a few sentences before that "Traditional marriage" was dead in the water.

Why yes, it is indeed, because --

I'm proposing a new amendment- that if opposite sex couples who get married do not produce offspring in a certain amount of time, their marriage shall be declared null and void and all benefits thereof shall be removed. After all, it's about children and bloodlines and family honor after all! If you're not pumping out mewling infants, you've failed the 1000000000 year old institution of marriage!

this amendment (or one with substantially the same meaning) would never pass. Because my view of marriage is a minority view. Shockingly enough. But I don't feel any more obligation to follow the majority view than you do. Should I?

I am glad to have read the comments here, and I look forward to the debate.

I usually have an opinion on most anything. This one leaves me split.

I will say that I understand the second sentence. It makes sense to me to keep the courts from end running the first, and no, I do not regard it as gratuitous nor affecting insurance. I hope the debate doesn't descend to that silly level.

I also hope the debate stays on track, honest, and respectful of the sincerity of differing opinions.

I hope the same thing is true if the Supreme Court ever were to rescind Roe v. Wade and the people of this state have to decide the abortion issue.

These are things that are close to people, matter on a fundamental level, have a high emotional content and a great capability to hurt, and no easy answers.

Well, leaving off the snark for a moment, I should bring forward a point I made about (when I engaged in a bit of light ad hominem) -- traditional marriage is dead in the wider society, because it involves burdens (e.g. childbearing, childrearing, sticking with it and not getting divorced, etc.) that most modern couples just aren't willing to put up with. When I say traditional marriage is dead, that is what I mean -- the majority just aren't going to bind themselves in that way again for a good long while. Continuing to adhere to heterosexual marriage will do absolutely nothing to restore the old patterns of marriage, because heterosexuality is not the whole of what a marriage used to be. Nor will it, contra Stanley Kurtz, do a thing to reverse the decline of the traditional family.

Small, point just coming back from work: someone writes: "Thus far in Wisconsin, more churches have taken formal positions against the civil unions and marriage ban than for it. These churches represent nearly 500,000 congregants"

Wisconsin has 5 million people. If the post-Christian "churches" with their shrinking congregations have chosen once again to embrace the political issue du jour in contradition to thousands of years of Judeo-Christian teachings they will be rewarded with continued and growing irrelevance.

And another point I forgot to make -- Palladian speaks of an amendment. And I'd noted that the laws and privileges we have built up around marriage didn't make marriage, they just recognised the social fact of it. That leads me to say:

Once you're depending on Constitutional Amendments to shore up your "institution" of marriage, it should be pretty clear that institution is pretty far gone.

A marriage ought to be something that is recognised by the law, not an artifact of a legal code.

Doesn't Rousseau say something of this sort about censors? How they're powerless to restore an old morality?

I see that it has largely descended into a downtownlad all those who disagree with me are GAY-BASHERS AAAAAARRRRRGGGGHHHHH!!!!!!!!

I thought it had descended into me bloviating endlessly, actually.

And as long as I am infesting this comment thread, I might as well clarify what -- it occurs to me -- may have been slightly unclear in what I said before:

"Because for me, while I have no particular problem with gay marriage... the idea of gay marriage nevertheless strikes me as bizarre. It does not compute."

Talk about cognitive dissonance! You disappoint us!

Children? Bloodlines? Family honor? Come on! You just said a few sentences before that "Traditional marriage" was dead in the water.

When I say "I have no particular problem with gay marriage," I mean that I think the amendments proposed here are silly and a waste of time, and I would not be terribly bothered by gays getting married. There are so few of them, after all, especially when compared against the Vegas instant-marriages and adulterers and all that.

Here's an interesting, if tangential article that is suggestive of the fact that it might be the high water mark for the SSM movement. Wait 50 years and demographics may have tilted the pendalum back towards sanity and traditionalism in the ordering of society [downtownlad reads - GAY-BASHING AAAAARRRRGGGGHHHH!!! =)].

Basic gist is that traditional minded, conservative people are the only ones reproducing at above replacement rate =)

As a supporter of equal marriage rights, I am excited... really ridiculously excited. I cannot wait to be here in Madison for the vote in November. Wisconsinites are too smart for an amendment like this. At some point someone is going to be the first to put their foot down and I'd put my money on the cheeseheads.

You're really going to pack up your toys and go home because you think the conversation has degenerated into a name-calling contest? Short of a few strong statments on both sides, including yours(understandable given the emotional topic), I think the conversation has been rather respectful.

If you want to see a truly offensive name-calling interaction, just imagine walking past picket signs that say All Fags Must Die, or God Kills all Fags Dead. I'd be willing to lay down odds that at the most radical of gay rallies you will never see a sign that says the same of straight people. I walked past people with those signs yesterday at the Capitol.

I don't believe that you or any other people involved in this conversation on this site support the folks who carry those signs and show up at funerals of soldiers to celebrate.

We do not have to support gay marriage to vote no to this proposal. We can simply agree that discrimination of any kind should not be written into our constitution. We can agree that this legislation is being used for an ulterior purpose. It has nothing to do with protecting the sanctity of marriage. If that were truly the goal, the amendment would prohibit divorce. We can send a message to our legislators that we are not fooled by this proposal, and that we are not so easily manipulated.

This truly is a defining moment for the citizens of Wisconsin and elsewhere. When you're in the privacy of that voting booth, which way will you go, and how will you explain it to your grandchildren? Did you have the courage to stand up for the minority, even if you don't fully appreciate, agree with or understand them? Or did you fall in with those who would discriminate against those who are different from them.

If you have not ever done so, talk to someone who worked to maintain segregation in the 50's and 60's. In my experience, they tend to express pain and embarrassment, and point to the excuse that it was just the times, or the way it was. Then talk to someone who stood up and said this is wrong, even though it was not in their best interests to say it was wrong.

I realize that marriage is a state issue. However, consider Wisconsin. If I had to guess, Madison would have a majority of the state's same-sex marriages, followed closely by Milwaukee. If I had to guess, those two cities would have at least 3 times as many gay marriages as the rest of the state combined. I know some people here in Madison who grew up in small towns, and told me they never met a gay person until they moved to Madison. Even people from cities the size of Green Bay might not have met an openly gay person before they moved here.

So, basically, a bunch of small town people are going to take their pastor's word for it, or Pat Robertson's or Sam Brownback's word for it, and negatively effect the lives of people in bigger cities where nobody opposes gay marriage.

But hey - if PatCa and Shadycharacter disagree, they should "convince" us. They should "make the arguments" as to why they deserve to be married and reproduce, despite the fact that their children are certain to be just as narrow-minded, hateful, and shallow as they are.

After all - it's the people who should decide if they should get married - not them.

For anyone who still thinks we should trust the pro-ban people when they say the ban will not affect domestic partner benefits, please consider exhibit A: the lawyer who drafted the Ohio ban claimed it would not affect such benefits. No sooner was the ink dry on the ban, and there he was, suing Miami University to stop it from providing equal benefits to its employees.

We can simply agree that discrimination of any kind should not be written into our constitution.

I think that already steals a base though. Many people -- myself included -- think that stating that no, same-sex marriages are not really marriages is not actually meaningful discrimination, because that's just reiterating the meaning of the term "marriage."

A stronger and more general argument would be, I think, that a state constitution is simply not an appropriate place to be implementing marriage laws, particularly when, as we can see from the past hundred years, the mainstream conception of marriage can change so radically in so little time. This goes, of course, for court actions to mandate gay marriage too.

First, if the people of a state really want to put miscegenation laws back, then that is their choice. And mind, I say this as the product of miscegenation. I mean, heck, on my mother's side, there's no legal record of the marriage or my existence, and we're completely invisible in a book we have tracing the history of my mother's family. And yet my grandparents treat us as kin, notwithstanding the law, and really, that is all that matters, no? The social fact of marriage. Anyhow, personal ramblings aside --

Constitutionally, I think the matter is slightly different.

On what grounds is there a right to marry someone of another race?

There is no right to marry someone of another race -- there is only a right not to be classified (with particular burdens and benefits apportioned) according to race. My reading of the equal protection clause, if I could sweep away history and rewrite constitutional law all by my lonesome self, might be somewhat different from the current reading, but I think we agree here: Under the current reading, racial classifications are subjected to the strictest level of scrutiny. There would have to be a rather strong reason underlying the bar on miscegenation. Now, there is a reason -- racial purity -- and at a certain time and place, that was considered a very real and perfectly legitimate end (and there was narrow tailoring etc.) But I don't happen to think that's a legitimate end, so I am quite glad the court agrees.

In the case of gay marriage, though, using a comparable equal protection argument does not get you nearly as far. First, sexual orientation only gets you as far as rational basis scrutiny (or rational basis with bite, if you prefer). Even Lawrence v. Texas still only uses the rational basis standard, which is the most permissive standard, and under which the court usually just makes up a reason, any reason, for the state to have implemented the law. They didn't do so in Lawrence but because of peculiarities in the law (which exempted straight couples from the anti-sodomy provisions IIRC), it was, frankly, rather difficult to come up with a consistent rationale underpinning it. One that made sense, at least.

But there are no such difficulties for heterosexual-only marriage -- I have been banging on the rationale in this entire comment thread: procreation.

The usual argument against procreation as a rationale is that marriage is not (at all) narrowly tailored for procreation. Because there is no test for fertility beforehand, no requirement (cf. Palladian's proposed amendment above) that a married couple procreate, and the fertile-octogenarian rule not withstanding, we let people who are clearly not going to be bearing any children get married, etc. And this is all true. But frankly, it's not like marriage is tailored for anything else. And I don't think (though I may be embarrassingly wrong here -- this is a ConLaw prof's blog, after all, and I was an indifferent student of ConLaw in law school) there is a narrow-tailoring requirement under rational basis scrutiny.

For other reasons, I do not think that equal protection under a gender-discrimination theory (more directly analogous to Loving) works either, in part because once procreation is given as the rationale, the sex differences between men and women become meaningful.

Now, this argument was considered and rejected by the Massachussetts Supreme Court, as I recall. But that doesn't particularly matter to me, because I think they got it wrong.

Uncle Buck said "Please tell me, specifically, how my marriage of 10 years will be debased if it becomes legal for TWO (not random groupings of) same-sex people to get married."

I'll answer that on the condition that you first tell us, specifically, how your marriage of 10 years will be debased if it becomes legal for the guy next door to marry his pet goat. For that matter, why do you object to marriage being available to "random groupings" of adults? Don't random groups have rights too?

Bottom line - It's not about your specific marriage, it's about the societal institution as a whole.

I think if SSM is put up for a vote it will always be voted down. Not because the majority of people are against it, but, because the majority of people just don’t care either way. And, the people that do care (thinking it will be the demise of all that is sacred) out number the minority wanting equal rights.

Thankfully, in Canada the decision was taken out of the people’s hands. After all, why should equal rights be up for a vote? Following in the footsteps of our late P.M. Pierre Trudeau, who was responsible for removing laws against homosexuality saying, “there’s no place for the state in the bedrooms of the nation”, Jean Chrétien then Paul Martin after him, stood firm and said anything less than equal rights will not be tolerated. We now have the Civil Marriage Act, which legalizes SSM.

Our newly elected PM had promised to put this issue up for a vote in the parliament. I’m sure he probably will. However, most Canadians are as ambivalent about the subject as Americans are… and, seeing as how the wrath of God hasn’t descended upon us yet, the feeling seems to be ‘just let it be’.

Following in the footsteps of our late P.M. Pierre Trudeau, who was responsible for removing laws against homosexuality saying, “there’s no place for the state in the bedrooms of the nation”, Jean Chrétien then Paul Martin after him, stood firm and said anything less than equal rights will not be tolerated. We now have the Civil Marriage Act, which legalizes SSM.

Canadians get married in their bedrooms? Perhaps that's why our liberals like to make jokes about moving there.

I love how people make the slipperly slope argument that gay marriage will lead to people marrying their goat.

Rediculous.

BUT, the slipperly slope argument in the other direction is NOT rediculous. First they ban gay marriage, and pretty soon they'll be putting gays in concentration camps and killing them.

After all - that slipperly slope argument HAS happened. And the favorite researcher of the Christian right, Paul Cameron, has publicly called for the execution of gay people. As does the Bible I might add. And we all know that fundamentalists believe the Bible word for word.

Patca - Well, I would start by asking, to what extent does marriage relate to the interests of the government?

The traditional answer to this question has been that the state has interests in monogamous relationships, and creating stable environments in which to raise children. Same-sex marriages can accomplish both of those goals. Marrying goats can not. Conservatives attempt to draw an analogy to bestiality because far more people find bestiality repugnant than homosexuality.

Its worth noting that until relatively recently, very few people got officially married. My grandparents, for example, were my first descendants (at least in the U.S.) to get married in an actual church with all of the ceremony that entails. Common law marriage was far more prevalent, because few people other than the middle class (which used to be far smaller than it is now) and the wealthy could afford to get married. Formal marriage arose in large part to establish a way to pass property rights along from one person to another. Since so few people had property, there was no reason for them to go through an expensive, elaborate ceremony. Common law marriage was seen as every bit the equal of church marriage in this country until the church LOBBIED the state legislatures to require an actual marriage in order to be legitimate in the eyes of the state, so that the churches could collect more fees. True story.

I'm curious. Do you believe there is a constitutional right for heterosexuals to marry and procreate?

I do not think there is a Constitutional right to marriage, standing alone. I tried to be careful above in arguing that in Loving, it was a right to equal treatment on the basis of race which was then implicated in the marriage law itself. And I think this largely because I see a yawning disconnect between "marriage" as a legal concept, and the substance of "marriage" as I understand it. When "marriage" becomes a trick of definitions, I think it's hard to maintain that there's a Constitutional right to this "marriage" thing.

On the other hand, I think there must surely be a right to procreation -- if there is any unenumerated right, that right must be among them. Do I have a Constitutional provision for that? No. I think it's just a fundamental human right. In some sense, the quote from Griswold below explains why I think that -- it precedes the law, in some sense. It's like a natural-law unalienable right.

And - do you believe that there is a constituional right for those married couples to engage in sexual activity, even if it is not procreative?

Yes. If we look at Griswold the majority opinion actually finishes up by saying:

We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Now, I think there may be disagreement on what people think that "purpose" is -- I obviously think it is procreation, and the perpetuation of a family and family culture (and ultimately, the culture of the civilisation) through the union and through the offspring of the union. Others can say it is happiness or personal fulfillment. In either case, although I do not really agree with a "zone of privacy" logic, I think the underlying concept is sound -- that there is a union and a relation here that the state has no right to intrude upon.

Now, I happen to think this is so because I think the right to procreate (if you can find a willing partner) is fundamental, unalienable, and all that, so there is a kind of zone of privacy surrounding the procreative relation, even extending to the aspects of that relationship that are not procreative. This also includes contraceptives, of course, as in Griswold. It also includes child-rearing, say, and preserving the privacy of a couple's private conversations right along with their pillow-talk.

I mean, this is a very fuzzy boundary I'm drawing here, because there are many procreative relationships in which there is no real closeness -- the father abandons the mother and the children, say. Or a man and a woman just habitually sleep around, and the woman happens to get pregnant.

But on some level, I think there is something protectible there, because "Family" is something that exists before the reality of law -- here in the US, especially, I think most of us must be conscious that our families had endured long before the ancestors of the Revolutionaries even set foot on the American continent, and even longer before there was any American law or legal tradition to set down that in this particular land this would be a true marriage, and these would be the relations between parent and child, and so on and so forth. Many of us may even know that history, stretching back through the Middle Ages of the West. So the notion that some Johnny-come-lately law could interfere too deeply in that ancient thing strikes me as peculiar -- on what grounds can it have got such a right over all of us?

But in any event -- to sum up: Yes, there is a right to procreation, no, no right to marriage, Yes, a right to nonprocreative sex within marriage, and yes a right to contraceptives.

You attempt to distinguish the equal-protection analysis of Loving v. Virginia by relying on procreation as your rational basis for discrimination against same-sex couples. This is unconvincing for several reasons, which I will summarize by offering you Exhibit A, fresh from her Supreme Court appearance - Anna Nicole Smith.

You attempt to distinguish the equal-protection analysis of Loving v. Virginia by relying on procreation as your rational basis for discrimination against same-sex couples. This is unconvincing for several reasons, which I will summarize by offering you Exhibit A, fresh from her Supreme Court appearance - Anna Nicole Smith.

And I respond: "There is no narrow-tailoring requirement under rational basis scrutiny."

This is unconvincing for several reasons, which I will summarize by offering you Exhibit A, fresh from her Supreme Court appearance - Anna Nicole Smith.

That is truly a good one. However... don't forget Brittney and her marriage affirming 48 hour union to ... what was his name? Yes we must protect these heterosexual marriages from the 10, 20 ,30, 50 or more year commitments of "some" gay people. hmmm....

Still have to say.. as a gay man, I can assure you I was born this way. If I could take a pill or snap my fingers and be "normal" I would. It would be much easier to "if you can't fight 'em, join 'em."

However, I can't. Why? I WAS BORN THIS WAY. and for that i must fight my way through the only life I was given?

Thanks. You really do make me want to join your loving, jesus fearing, do unto others, moral majority, I am perfect, I must help you out of your misery, I can't be bothered by equality, cause.

It may not be in my life but eventually there will be a consensus of god-fearing, and moral folks who realize that hatred has NO place in any society.

"HELENA - The gay and lesbian partners of Montana university system employees could be offered health insurance benefits as soon as April, members of the state Board of Regents said at their meeting Thursday.

The Montana Supreme Court ruled in December that the university system's current health insurance policy, which allows unmarried heterosexual couples to receive benefits, violates the equal protection clause of the state constitution since it doesn't afford gays and lesbians the same benefits.Cathy Swift, attorney for the office of the commissioner of higher education, will develop health insurance policy options for the regents to consider at their March meeting.

"I hope the people of this state don't think we're going to decide the issue of same-sex marriage and civil unions," regents' Chairman John Mercer of Polson said Thursday morning. "But I think we want people whoever they are to have insurance, especially if they're willing to pay for it."

While the university system pays for the full cost of its employees' insurance, employees must fully pay for coverage of spouses and dependents.

Commissioner of Higher Education Sheila Stearns said it's more likely that the university system will open its policy to include gays and lesbians, rather than restrict it to heterosexuals who are legally married. A constitutional ban on gay marriage in Montana, as well as a state "Defense of Marriage Act," prevent gays and lesbians from marrying here."***

I think the gay-marriage advocates are getting caught in the backlach against the sexual counter-revolution of the late 50's-70's. Monogamy is relatively rare in human history and is demonstrably more egalitarian than the alternatives, i.e. it keeps the alpha males from dominating the gene pool.

Homesexuality is more a symptom of the fall back to de facto polygamy (our relatively high out-of-wedlock birth rates are the product of a few very active fathers) than the cause (it is most prevalent in societies, both animal and human, where the alphas are getting all the hetero action). The irony is that a more monogamous society with the concomitant reinforcing institutions, is on the whole more "progressive".

Before you go all q.e.d. on us, check out the Montana amendment. Then check out the Wisconsin amendment. Notice the huge difference?

The Montana amendment has one sentence, the equivalent of the first sentence in Wisconsin's proposed ban. It's half the length of Wisconsin's and carries a mere fraction of the far-reaching implications.

Discussion of insurance and civil unions in these comments, and in Ann Althouse's original post, are all about the second sentence.

As someone who thinks that marriage is pretty lame, I still say with great confidence that discriminating aginst gay people in passing out the benefits of marriage is exceedingly lame.

I also hate the slippery slope argument, but for a different reason. Why should the state regulate any consensual relationship -- including polygamy or adult incest? I am allowed to make bad choices with my career, my finances, my abuse of alochol and tobacco, and even my safety. Why can't I marry two women, or two men, or my sister if I want?

And before someone brings up the lame genetic argument: we generally do not screen people for high risks of genetic diseases before allowing them to procreate or marry. In fact, most incestuous relationships carry a risk of genetic abnormalities in offspring only slightly higher than the average, and much lower than many permissible marriages?

Think I'm nuts? Note that a few states have already quietly decriminalized incest. Surely, this must have already torn apart heterosexual marriage, and instantly led to the downfall of society...oh, wait, it didn't, and almost nobody noticed that it even happened. Why? Cause very few people want to do that anyway.

I'm sorry that I can't be more constructive about this, but refusing to let gay people get married is just retarded. Prohibiting gay marriage is irrational sex discrimination, analogous to Loving. More than that, it facially discriminates against an insular minority, on the basis of a pretty damned immutable characteristic. Beyond that, it's just mean spirited.

In a generation, the federal constitution will prohibit all state discrimination on the basis of sexual orientation. It's just the demographics of it -- young people, by and large, are far more approving of gay rights than older people. Mathematically, this will be the majority position before too long.

It is just sad that we have to wait for the world to see sense.

(117 comments in, thought it would be valuable to throw some gas on the fire...)

if you insure unmarried heterosexual couples, you cannot refuse to provide insurance to umarried same sex couples.

The second sentence of the proposed Wisconsin ban does not differentiate between unmarried couples. Gay or nongay, it applies to all unmarried couples evenly. This is why judges in Ohio, which passed a similar amendment, are tossing out domestic violence felony charges filed by women against their boyfriends.

Terry,I'm asking you, as you are the one who has come before this forum asking for relief! :)

Could I marry my sister, two men, or three of my best friends, or my 17-year-old but very mature neighbor? Could religions who believe in polygamy be able to legally marry multiple wives? How about multiple husbands. I'm asking where the line should be drawn, and why.

I didn't expect you to say that you supported a Constitutional right to contraceptives, but not marriage.

Marriage, since the 17th century Puritians, has historically been classified as a contract in the United States.(no separate church law, ect.)

I think you are denying Americans a right to contract.

Of course, I have a capacious approach to the constitution, and among other things, I find the right to marriage in the liberty and Due Process clause of the 14th Amendment.

But more then anything, in the abstract sense, when as citizens we find the popular cultural attitude that "I'm an American, and I'm free" -- what people really mean is they expect to have certain liberties, that are unrestricted. I think the right to marriage and contract must be one of those rights.

geoduck: not to split hairs, but actually, contract is really only a metaphor for marriage. I don't generally need the state's consent to contract, but I do to marry.

Furthermore, re: pets and consent to contract: we allow people who cannot legally give consent to contracts (young children, the mentally ill, etc) to enter into contracts nonetheless, through the substituted consent of their guardian. Some pets are probably smarter than some humans whose guardians can contract on their behalf. So it is too facile to say that a pet cannot consent, ergo she cannot contract.

Probably why we exclude non-human animals from the capacity to contract, is simply that we don't believe that they can perform the obligations of a contract faithfully, so there wouldn't be a point. Plus, they are judgment proof, and hence the legal strictures are meaningless.

HOWEVER, a human-pet relationship in some ways very much resembles a marriage. After all, we share a home, lots of affection, etc. Many marriages, over time, become non-sexual, or nearly so. And sometimes, marriages involve one party who has, through stroke or other illness/injury, become incompetent. Where is this bright line exactly?

Indeed, other than disgust, what is the rationale for prohibiting sexual interaction (non-harmful) between a willing human and a willing non-human animal? I agree its nasty as all hell, but what is the public interest at stake there? Is anyone being harmed?

Could I marry my sister, two men, or three of my best friends, or my 17-year-old but very mature neighbor? Could religions who believe in polygamy be able to legally marry multiple wives? How about multiple husbands. I'm asking where the line should be drawn, and why.

PatCA: Why do we have to prove where a line should be drawn? I see where you are going with this, but you are being extreme. We are talking about two people that are in love and wish to share the rest of their lives together. Isn’t that what you want or have right now? That is all we’re asking for. You equating giving us our right to marry with being able to marry a sibling/teenager/multiple partners is insulting. That should be a separate issue that we all can discuss. And, when it’s raised on a ballot I’m sure it will be.

One historical way that courts have turned over wills is the lack of capacity argument.

(He didn't know what he was doing when he changed his will - undue influence; diminished mental capacity, ect. This argument has been often used, for example, when men changed their will to benefit their mixed-race, ex-slave children. The legal heirs then would often argue that their relative was mentally insane or had changed his will due to undue influence.

Nineteenth century marriage laws also codified the mental incapacity as a disqualification for marriage. So it's got a long history in the US.)

Insanity, defined as lack of capacity, is one condition that will invalidate marriages or contracts.

The lack of capacity or consent is why we can define the rape of a child as a inability to consent. Because a animal or child cannot consent, they cannot enter into contracts.

In the instance of the guardian consenting, you have an adult who is doing to "active thinking" and qualifies as capable to enter into a contract.

I'm not a lawyer, and my knowledge of contract law really only extends to a bit of legal history.

And my point was that there is no difference, rooted in a theory of consent, between a guardian's substituted consent for an incompetent human, and a human guardian's substituted consent on behalf of an animal (which may or may not be able to express consent).

So if the dog can't contract, it can't be because it can't consent, because its owner is in just as good a position to give consent as is an incompetent's legal guardian.

Marriage always includes legal sexual activity. In fact, the absence of sex leads to non-consummation, which can invalidate a marriage.

The assumtion and legalization of sexual activity is what makes the issue of consent so important.

Both parties must have the ability to legally consent to sexual activity, or that would invalidate a marriage contract. That is why marital capacity and consent excludes pets, children, and incapable adults.

Children and pets are unable to consent to legal sexual activity with capable adults.

A guardian cannot consent for a young child to engage in sexual activity because of the child's inability to consent to sex. Likewise for a dog. Pets cannot consent to sex, which I imagine, is one argument against bestiality.

I haven't taken any contract law, so I don't know in what circumstances guardians can consent for minors when arranging contracts. My knowledge, also, is relatively restricted to the 19th and early 20th century US.

I'll agree on the kids...I think issues of psychological coercion overcome any consent, and anyway, I think that the consequences of child sexual abuse are so harmful, and the child has so little ability to evaluate the potential harms, that society can rightfully regulate in that sphere. (And thankfully we do.)

But to get back to the pets -- is it really clear that they can't consent to sexual activity? I mean, if an animal isn't enjoying a physical contact, they let you know pretty darned quickly. As long as the animal is willingly going along with the human and not being abused, I'm not sure I see the harm to either party. And I generally need to see harm before I'm willing to let the government regulate private behavior.

I think its really gross, of course. But I'm not sure if we can rightfully regulate on the basis of gross-out factor.

Yeah, I just disagree about animal consent to sex. After all, adult animals consent to having sex with each other all the time. Why do you think they cannot consent to having sex with humans in the same way they consent to having sex with eachother?

They just don't have the brain power to really engage on the level of consent that we require for legal sex or marraige.

Likewise, I think we have an implied obligation to take care of an animal. However, the animal doesn't have the capacity to say - hey, we have a contract!

You know, this is really ironic because my male cat has a really bad habit. He carries around his mouse toy in his mouth and howls. Then he want to masterbate on top of a particular blanket. He also meows at me to spread out the blanket for him. Yuck. But it is hilarious.

So obviously, my cat has urges. But he can't consent in a human sense of the word. He doesn't have the capacity.

I left a a short post on your blog about the history of criminal law, capacity and sex.

Like I said, I don't know what the state of contract law is right now - but I think that the fact that marriage legalizes and requires sexual activity is critical to how capacity is construed in that context.

I just told my cat that I better not catch him in the bathroom with a copy of _Cat Fancy_ magazine.

Seriously, though, I think that our relationship with pets cannot be a contract because of the incredible inequality inherent in the situation.

My cat didn't have a choice when I choose him at the shelter, although he purrs, so I assume that he's happy. Pets also don't have any obligation to provide us wtih anything. Just like little children, they are in the control and under the guardianship of their parents.

I think the relationship with a pet is far closer to a guardianship situation, then of a contract between equals.

I'll respond to this here (my comments are kind of screwed up back at MMMT):

Is marriage (in the modern sense) a legalization of sex? Does it require sex? My grandad got remarried, mainly for companionship purposes, at an age where I doubt he had the ability or interest in much sexual activity at all. I think plenty of people are married for whom sex is no longer a central part of the relationship.

Nowadays, we pretty much freely have sex, in or out of marriage. Marriage seems to serve a different purpose than just being a vehicle for sex or procreation.

Back to your cat and his habit (and that is gross!): what do you think consent means, "in the human sense?" Is it just agreement? I think my cats agree to be picked up, or they don't and wiggle out of it. If they react with purring or closed eyes, that indicates that they don't mind being picked up right now. That seems to be just as much consent as me signing a contract.

Now, as to informed consent, I'd agree. I don't think my cats can consent to vet procedures in the way I consent to surgery, because they can't understand the risks/benefits. So I substitute my consent for theirs, as their guardian. It's kind of a sliding scale -- which is not alien from the human guardianship relationship. When I worked at a child welfare law office, we were our client's guardians ad litem. We would exercise a sliding scale, based on their capacity, between representing their best interests (regardless of their consent) to representing their wishes (regardless of their interests), all depending on their age and acuity with regard to an issue.

I think that if animals can consent to sex with each other, they can consent to sex with us. Not that I think it is likely to happen all that often. But I do think that animals can agree to certain things just as well as humans.

Speaking of cats and their filthy behaviors: I have two youngish male cats. They like to groom eachother with a ferocity bordering on the pornographic -- in other words, they basically make out, grabbing each other around the shoulders, and licking each other's necks. Basically, my cats ARE gay-married.

What will Wisconsin do? Surely, someone has to act to stop this rampant animal homosexual marriage problem! How can the institution of marriage survive?

Re: pets and contracts...is that always the case? It sounds fine with a cat, but a lot of people own dogs that could kill them if they wanted. Surely, those dogs are consenting to be kept, otherwise they could overpower their owners and escape. I have known cats that refuse to be tamed, when rescued from the street, and who never behave in a domesticated way. They almost always run away.

Likewise, horses. We can't really ride horses that don't want to be ridden.

Do you really think that none of these relationships partake of contract at all? Especially as one starts to consider working animals?

(All this is to leave aside the issue of herd animals -- that's a whole different ball game...)

esk,I don't think that it's too extreme to ask for a definition of the "line" because what you are arguing is essentially private behavior with no effect on others isn't just private.

Polygamy proponents have already filed suit asking for legalization. I think when one man, for instance, has five wives, that's four other men who don't get one. In communities in the US who practice polygamy, often the husbands beat up and expel the "extra" men. The rural ME and other areas where polygamy is practiced also have lots of extra men, also causing problems. So, I will go out on a limb and state polygamy is not good public policy for a stable liberal capitalist democracy.

Could I marry my best friend? It would sure be cheaper to get health insurance. What would that do to the bottom line of insurance companies, and would it be fair to someone who chooses to be honest and not marry just a friend? And incest over several generations does cause an increase in birth defects--just google consanguinity and birth defects.

So, I think it would be a huge societal change if all barriers to marriage were removed.

patCA: polygamy is bad for democracy? Why? Can't we regulate anything those extra men would do that would be harmful to others? Why would we assume polygamy would become so common that these guys couldn't just move elsewhere and mate? Why do you automatically assume that there would be only polygynous marriages and not polyandrous ones? And what does any of this have to do with "stable capitalistic democracy?"

as for what insurance companies would do...seems like that is up to them. how we define marriage doesn't automatically control how they define their policies, unless they are lazy.

Yikes, herd animals! Now we're getting into shades of Catherine the Great.

Think of it in terms of a power differential and about what the definition of rape is in terms of capacity.

Your male cats can mess with each other or have sex or whatever. But that's because they are both animals/ pets/ cats.

If two twelve year old children have sex, it's not defined as rape. But, if a teenager or an adult has sex with a twelve year old child, that is defined as rape.

It's all about the power inequality. But two sentient creatures who exist in the same category can have sex with each other without it being defined as rape.

Two cats; two mentally incapacitated adults; two children of the same age; two really drunk people; ect.

However, when a human of full mental capacity has sex with a sentient creature that does not have the ability to consent, then that is legally and morally defined as rape.

I don't know about the marriage question and sexual activity. The legal question of sexual consummation has always defined marraige. People have been able to get out of marraiges by demonstrating lack of consummation.

RE: my cat. Yeah, he's a wierdo. He really shrieks at me when he's got the mouse toy in his mouth and is kind of humping the floor. He'll come into the study with the mouse toy while I'm working on the computer and howl. I suppose the mouse toy is a substitute for holding a female cat's neck.

And he is fixed. But aside from his strange mouse toy-as sex toy issues- he's a very nice cat.

Before you go all q.e.d. on us, check out the Montana amendment. Then check out the Wisconsin amendment. Notice the huge difference?

Why does this difference change the result? It would seem to me it would just reinforce it.

If insurance is provided for "married" couples, same sex couples would be excluded. If insurance is provided for umarried heterosexual partners, it would have to be provided for unmarried same sex couples.

"Why do you think they cannot consent to having sex with humans in the same way they consent to having sex with eachother?"

If I were a sheep knowing what I know about what happens to them, I'd much rather have some human or humans have sex with me on a regular basis than be hit in the head with a pneumatic hammer, be hung upside down and have my throat slit. I'm not sure that all sheep would make that choice, but I given those options, yeah bring on the lonely shepherds.

Comparing GLBT relationships with sex with animals is cheap, unintelligent, and frankly, offensive. I also find it boring, but that is personal.

So you suppose that I should sit down with my daughter and explain to her that the majority of people in the State of Wisconsin compare our family to sex with goats? Our family is about as normal as you can get. In fact, it is much more normal than plenty of heterosexual families. We are monogamous (for 12 years), our daughter attends public school,and we volunteer in the community. This morning our daughter had had Lucky Charms, I had oatmeal, and her other mom grabbed a piece of toast going out the door to work. My partner was born and raised in far northern Wisconsin, where her family still lives. They are all blue collar workers, and all of them will vote against the amendment, because they know how sad it would be if this passsed.

This law is about real people and real families. Please do not ever forget that. It is all well and good to come up with abstract arguments ad flippantly compare us to animals. In the end, though, it really, truly hurts innocent people in heartwrenching ways. In the conversation, please never lose sight of that.

Lawyapalooza, for the record I am absolutely in favor of state sanctioned same sex marriage and think opponents are not-so-benignly misguided at best and dirty-minded little bigots at worst. The US is clearly behind the curve on this one and needs to catch up with the civilized world.

My post was on the question of animals and consent, OT but sort of interesting in a sordid way.

sorry, I didn't mean to offend. I certainly never meant to draw a parallel here. What I was trying to do was highlight our society's irrationality when it comes to the regulation of consensual sex in a variety of situations. Especially, i wanted to deconstruct that whole slippery slope nonsense. My point was never to draw a parallel, but to show that this is much ado about nothing. The kinds of sex posited to be down the slope from homosexuality are not so harmful as they are made out to be, and they are extremely rare.

Indeed, I believe the liberty argument in favor of gay marriage interacts with and supports the privacy/civil rights model that is more commonly discussed.

As I believe I said above, I don't think there is a single persuasive argument for the kind of idiotic amendments being proposed in Wisconsin and elsewhere. I think I also intimated that I think that gay civil rights are protected by the 14th Amendment of the federal constitution to a much greater extent than is recognized at present (and hence, I would find this state constitutional amendment void). I don't think many people on this thread have gone so far.

geoduck: marriage may have been that way once, but I think that nowadays consummation is neither a necessary nor a sufficient condition for marriage. I think this is where your friend's 19th century focus draws you into indefensible positions, with respect to the modern institution. I am legally permitted to marry a woman purely for friendship in our modern society. No one is going to punish me for doing so, or check if we are having sex. We can get a no-fault divorce on the same basis as anyone else, but we don't get special rights in that respect.

Re: power dynamics. Do you think that it is rape for a very intelligent person to have sexual contact with a not very bright, but still competent, person? How about a very wealthy person with a very poor person? All of those relationships involve serious power imbalances...are they all necessarily rape? Indeed, can we say as a general matter that whenever a weaker party agrees to something sought by a more powerful party, it is against the weaker party's will? Have I asked to many questions yet?

What I am trying to get at, is that I think our concept of consent is at present severely undertheorized. What does it mean -- is is defined by willingness? Than someone who goes along even under duress is consenting? The absence of coercion? Many people are compelled to enter contracts by their life circumstances, or just by pressure from a salesman. Should all of them be able to breach the contract without penalty? What exactly is consent, and how does it differ from agreement? Because I don't think power dynamics change the fact that a weaker party is agreeing to sex, whatever the reason.

If you would say, consent shouldn't be coerced by a fear of punishment, I would agree with you. I'm just not certain that is at stake in the context of animal-human sexual relations, for the most part. I'm against animal cruelty in all forms. I'm just not sure that doing something to an animal that it agrees with is abusing it.

Once again: I do not mean to draw any parallels here; only to spark discussion about the irrationality of sexual regulation more broadly. I think that relations between two or more competent humans are on a different plane entirely from the situations discussed above. But I think teasing out what it is that bothers us about various taboo sexual scenarios, and what could be the legal basis for regulating them, is a nice way to get at the hysteria underlying all sexual regulation.

The reason I brought up rape is it quickly explicates republican theories about capacity and consent.

In the philosophy of republican theories about capacity is the assumption of civil and political standing. Children don't have their full civil and political rights until they are emancipated. Likewise, enslaved people could not legally marry in the United States.

(Slaves could not be sued in court for debts; married slaves could not stop their masters from forcibly separating families; slaves did not have the civil and political recognition necessary by the state to legally marry.)

As adults, people expect political representation by the state and enter into a relationship with the state. They also enter into a civil relationship with other individuals who make up our society. For example, they have the standing to bring a civil case in court.

Marriage assumes that both partners have civil and political standing in the Republic. Both partners can be sued for debt by creditors; both partners are legally responsible for the taxes. If one partner cheats on the taxes, and leaves the other partner in ignorance, both are still responsible to the state.

This condition implies that both partners have reached a point of capacity and consent to enter into this relationship.

So when I speak about capacity and consent in terms of rape, this relates to consent within these political theories. Marriage has a history of being a consensual relationship similar to the relationship that citizens enter into with the state. 18th and 19th century women, when they had unequal civil and political rights, could still marry men. However, women did have some civil and political rights. And widows could be sued in court for their deceased husband's debts. Women had the right to assemble and the right to petition Congress for their grievences. However, marriages could be invalidated if either partner was found to lack the mental capacity to consent to the relationship.

Rape quickly explicates the political theory of consent, but it really doesn't capture the capacity that marriage requires to be legal under republican theories of consent.

Do you see what I mean? Both partners in a marriage have a relationship to the state in a policial and a civil sense. They have some degree of political and civil standing in that society. According to republican political thories, it was never necessary that both partners have political and civil equality. But women always had some degree of political and civil recognition by the state. Women had, in the broadest terms, many citizenship rights. (For example, in the first amendment - the right to petition, ect.)

I am sorry that this discussion was hurtful. One of the reasons I wanted to discuss it is to show why Santorum man-on-dog slippery slope argument about marriage is full of shit.

Marghlar,

I think I also intimated that I think that gay civil rights are protected by the 14th Amendment of the federal constitution to a much greater extent than is recognized at present (and hence, I would find this state constitutional amendment void).

I agree!

I think this is where your friend's 19th century focus draws you into indefensible positions, with respect to the modern institution.

You're right. I also work on the 19th century. My temptation with the recriminalization of abortion is to say - "Oh Yeah, while then we should bring back criminal seduction, baby!" Which, of course, is counter to my aims of promoting equal civil and political rights for all genders.

Do you think that it is rape for a very intelligent person to have sexual contact with a not very bright, but still competent, person? How about a very wealthy person with a very poor person? All of those relationships involve serious power imbalances...are they all necessarily rape?

I agree with your points here.The power imbalance, according to republican theories of consent, are directly related to civil and political standing in the state.

Rape was a quick and easy way for me to make part of my point. The history of marriage deals with capacity and consent in a way that breaks away sharply from the history of rape. Again, it's all about political and civil standing and the consensual relationship in a marriag has been compared to the consent required to belong to a republic.

I think our concept of consent is at present severely undertheorized. What exactly is consent, and how does it differ from agreement?

Totally agree with you - although others have worked on the history of republican theories of consent and contract.

I also agree that our present day understanding of capacity is undertheorized.